Agents of the Constitution: The "Show Me" State Protects the Fourth Amendment.

Back in 2008, we strenuously argued in front of the Minnesota Supreme Court about a topic that directly impacted the lives of many of our clients - Minnesota's practice of ignoring the Constitution and performing warrantless searches in nearly every DWI case. Ultimately, our Supreme Court ruled that a newly minted "single-factor exigency| doctrine meant that the Fourth Amendment did not apply to DWI suspects in Minnesota.

Fast forward to 2012, where the Missouri Supreme Court found otherwise in State v. McNeely. In a concise, but very well-reasoned order, the Court followed prior U.S. Supreme Court precedent in Schmerber v. California and held that, unlike the situation in Minnesota, a warrant is required to search DWI suspects in most cases.

If you have any interest in Constitutional Law, read this decision. The Missouri Supreme Court did an excellent job of interpreting prior precedent and establishing a solid policy for the future - and did so by upholding the Constitution, rather than watering it down.

This decision impacts Minnesota law in two ways. First, it again emphasizes that our courts are divided on this question, which may convince the U.S. Supreme Court to step in and adopt the logic used in Missouri (which would overturn the current state of the law in Minnesota).

The second key feature of the McNeely decision requires us to look a little deeper. In a footnote, the Court noted that prior Missouri law required consent prior to a blood draw, and that if the driver didn't consent to a test, then |none shall be given.| That key language was held to require warrants in most Missouri DWI cases - and that language was removed by the Missouri Legislature in 2010. Prosecutors then argued that without the |none shall be given| language, police were now free to perform warrantless tests on DWI suspects. Clearly, the Missouri Supreme Court felt otherwise.

What's interesting about this is the fact that Minnesota has nearly identical language in its own Implied Consent Statute. Here, just like in Missouri prior to 2010, if a person refuses to consent to a test, then |a test must not be given.| However, Minnesota Courts have consistently refused to interpret this provision, sidestepping the issue in case after case, as if this language didn't exist.

In Missouri, even prosecutors agreed that this type of language prohibited warrantless tests of blood, breath or urine. In Minnesota, this language has gone ignored - for years. Despite the Minnesota Supreme Court's creation of the |single-factor exigency| doctrine, this legislative enactment should require warrants in nearly every DWI arrest. Perhaps this most recent decision from the highest court in the |Show Me| state will, in fact, show our state the correct way to protect the rights of DWI suspects.